Elder Bruce C. Hafen J.D.

Today I hope to give pro-family advocates some ideas as tools to help restore the meaning of marriage — in general and in the same-sex marriage debate. Ideas can be very practical tools. As Oliver Wendell Holmes said, nothing is as practical as a good theory.

The universal Love Story is one of history's most familiar and hoped-for story lines: boy meets girl, and they fall in love. As their love proves stronger than their fears, they marry, have children, and face life's tests together in a life story punctuated by what one ancient writer called "suffering, sorrow, afflictions — and incomprehensible joy."

Men and women the world over have found that married love gives birth to commitments so deep that marriage creates a kind of mysterious power. The power is in love's paradox, something about finding ourselves by losing ourselves in bonds that demand everything of us — even as those bonds also brings us life's highest fulfillment.

This is not just a personal story, but a community story. Marriage has always been the crucial knot in the fabric that holds society together. Every marriage affects those in the concentric circles of influence that ripple outward from the couple, through their children to the larger community. That is why guests and friends have always celebrated weddings as community events.

As Wendell Berry put it, "Marriage (is) not just a bond between two people but a bond between those two people and their forebears, their children and their neighbors." Therefore, "Lovers must not . . . live for themselves alone. . . . They say their vows to the community as much as to one another, and the community gathers around them to hear and to wish them well, on their behalf and on its own. . . . If the community cannot protect this giving, it can protect nothing. . . . It is the fundamental connection without which nothing holds, and trust is its necessity."

The Claddaugh Ring, a wedding ring from Irish antiquity, symbolizes how marriage is a three-way promise. Originally the ring had three distinct bands. The bride brought her band to the altar, offering her heart in her hand. The groom then placed on her finger a second band, joining his heart with hers. Then a priest or state official would complete the wedding with a third band that carried a crown — a symbol of the community's interest in the marriage.

The crown in the third strand of the Claddaugh Ring also symbolized the couple's future children. As Louis de Bonald wrote two centuries ago, the state represents those children at a wedding so that "public power" can guarantee "the commitment made by the two spouses to form a society."

The community attends weddings not to pry into private affairs, but because of its enormous stake in the outcome and the offspring of each marriage. To marry is to make a public commitment that one accepts personal responsibility for one's children and for their influence on the kind of community we create over time. Indeed, it is precisely this public part of marriage that distinguishes it from all other relationships and contracts. Neighbors and friends don't gather to celebrate business contracts. But people everywhere love to come to weddings. The children among the guests often come with wonder in their eyes. Some of the older people come with tears in their eyes — perhaps tears of joy; or perhaps tears of empathy, because they think they know what the couple is really in for.

Marriage is our first and most important social institution, so basic that its emergence in unrecorded history marked the beginning of civilization — the moment when men took a permanent interest in their wives and in their offspring. Marriage has thus given young couples in every culture a kind of life-script for their story together, full of messages and meanings, both personal and social. This script gives each couple "an orientation toward the future," said Kay Hymowitz, so "the self-governing couple" can raise "children to be self-governing citizens." These social and personal expectations make marriage our culture's primary means for transmitting values from one generation to another, the key source of society's long term stability.

But wait. Can you hear that ominous background music in a minor key, growing ever louder in the sound track of our universal Love Story? Just over three years ago, in the wake of America's first court decision mandating same-sex marriage, the Massachusetts legislature "adjourned in exhaustion after struggling for two days," unable to decide, "what is marriage," anyway? Later that same week, an international newspaper ran a front-page story on the exploding trend among European couples, who prefer "marry me, but only a little bit" — a new concept that gives a few rights to live-in partners but without the wedding bands or marriage bonds that create serious long-term commitments. Over 80% of Europeans now agree that it is "all right for a couple to live together without intending to get married." In the U.S., 46% agree with that statement.

Consider the social implications of this trend: 82 percent of first-born children in Scandinavia are now born outside wedlock, despite abundant research showing that the children of cohabiting parents face serious psychological and other risks, compared to the children of married biological parents. (See summary below.) Have the parents of those children lost their copy of the life-script for the universal Love Story? Yes. As a parliamentary commission in France wrote recently, marriage in Europe has "lost its magic for young people," who increasingly feel that "love is essentially a private matter which leaves no room" for the state to say anything about their marriage or their children.

This is not just a European problem. Since 1960, the divorce rate in the U.S. has more than doubled, though it has dropped slightly in recent years. Still, about half of today's marriages will likely end in divorce, making the United States the world's most divorce-prone country. These figures would be even higher if they reflected the breakups among live-in couples, whose numbers in the U.S. have increased 760 percent since 1960. One in three American babies are now born out of wedlock — a 13 fold increase in non-marital births since 1950.

What is going on here? Mary Ann Glendon, a Harvard legal scholar, believes Western society is now living through a "transformation of family law" so huge that it is the most fundamental shift in five hundred years in laws and attitudes about the family. Historian Francis Fukuyama believes today's massive family disintegration is part of "the Great Disruption," a wave of history as big as the shift from the age of agriculture to the Industrial Revolution two hundred years ago.

We can see the force of an anti-marriage revolution in those statistics showing skyrocketing unwed births, cohabitation, and divorces. Each of these trends has its own causes, but all were accelerated by a series of liberation movements that together flew the flag of individual rights as their primary banner. In the last forty years, many people — perhaps most — have stopped believing that marriage is a public, long-term social institution. Rather, they now see it as a purely private, temporary source of personal fulfillment.

In other words, to use an Australian expression, modern society has "lost the plot" of the universal Love Story. Here is a brief summary of how we lost that plot. Understanding these forces will help us respond to them. First came what Kay Hymowitz calls the anti-marriage revolution and then came the same-sex marriage movement.

The legal theory of individual rights played a much-needed role in the 1960s. The civil rights movements of that era helped us address America's shameful racial discrimination and much unfair gender-based discrimination. However, some extremist critics went much further, using "rights" language to challenge laws and customs that supported family relationships. For example, in 1978 one prominent law professor expressed his fear that anyone should "dominate" another person. So he argued that American law should liberate "the child — and the adult — from the shackles of (all) family" commitments. The more radical wing of the feminist movement also attacked marriage as a source of oppression against women. Betty Freidan, for example, once called marriage a "comfortable concentration camp." And Mae West reportedly said, "marriage is a great institution, but I'm not ready (to be committed to) an institution."

The no-fault divorce movement, which began in the late 1960s in California, originally just wanted to eliminate the messiness of establishing personal "fault" in a divorce case. Family court judges were still responsible to determine, on behalf of society, whether the marriage had in fact broken down irretrievably. But with the strong winds of the liberation movements blowing through their courtrooms, these judges simply didn't have the will or the wits to resist someone who wanted "out" of a marriage — even if that person's partner wanted to keep the marriage alive. If marriage was a concentration camp, even if sometimes a cozy one, liberating its captives began to feel like a noble act. This reasoning gradually transformed the popular understanding of marriage from being a social institution full of moral obligations to a non-committal private relationship that either partner could terminate at will, for any reason.

Other judicial and legislative decisions began giving individual rights priority over traditional family structures. The Supreme Court gave parental rights to unwed fathers. Some family courts awarded child custody and adoption rights to people living in unmarried cohabitation or, in a few cases, to homosexual partners. Until the 1970s and 80s, American courts would never have awarded child custody to parents in an "alternative lifestyle" home, because they knew from experience that children thrive best when raised by a mother and father. But as the momentum of a permissive cultural climate blended with the force of ever-expanding personal rights, more and more judges allowed claims of adult liberty to trump the best interests of children.

U.S. law thus began to celebrate the "right to be let alone," even in a family. Law professor Janet Dolgin salutes the way these developments establish an ideology of equality "that presumes the autonomy of the individual." She does admit that this new vision leaves spouses and children "without a sense of ultimate responsibility within, and toward, any social group." And she realizes that the new spirit of individual freedom is unable to "anchor people in a social order that encourages responsible connection." In such a world, the priority of personal liberty leaves people unsure whether the natural bonds among family members are valuable ties that bind — or sheer bondage.

One reason this anti-marriage revolution gained momentum was that social scientists during the 1970s and '80s simply failed to address the effects of the revolution on children—and, therefore, on the society those children were creating. Many researchers were victims of their own political correctness. One major study of teenage pregnancy, for example, saw ways to eliminate rising unwed births, but the authors concluded that curbing teen pregnancies would uncomfortably curb the morally liberated adult atmosphere.

These researchers are typical of many adult leaders of the anti-marriage individual rights movement, who added "children's rights" to the liberation agenda. Childrearing makes heavy demands on adults. To escape those demands by giving more "liberty rights" to children is a beguiling invitation, because it provides an easy rationalization for adults whose personal convenience is also served by leaving their children alone.

I once saw a small boy standing all alone, looking lost and afraid. He was wearing a big T-shirt bearing the slogan, "Leave me alone." He is my poster child to illustrate the irony of allowing irresponsible adults to abandon children to their "right to be let alone" in the name of liberating all the captives of a society oppressed by family ties.

In more recent years, a flood of new research has demonstrated the personal and social harm of doubling the divorce rate and quintupling the rate of unwed births. The New York Times in 2001 reported a "powerful consensus" among social scientists that "from a child's point of view . . . the most supportive household is one with two biological parents in a low-conflict marriage." For example, a group of family scholars recently published a report summarizing a mountain of research showing that children of divorced or unwed parents are far more likely than other children to become divorced themselves or to have children outside marriage; to live in poverty; to experience depression, mental illness, suicide, and educational failure; to suffer sexual abuse; or to engage in criminal behavior.

In other words, children of single parent families fare worse than other children by virtually any measure of a child's well-being. We're speaking of social ills that can have many causes. But their common denominator, as David Blankenhorn and his colleagues found, is the "decline of marriage." "The most important causal factor of declining child well-being," they concluded, "is the remarkable collapse of marriage, leading to growing family instability and decreasing parental investment in children." And while the larger implications of this instability may seem obvious, let it be clearly said: damaged children create a damaged society, and when enough families are dysfunctional, society itself is dysfunctional

In addition to its effects on children, lack of a marriage commitment also impacts cohabiting adults. Compared to married couples, live-in couples are much more likely to experience depression, alcohol and drug problems, infidelity, lower incomes, unhappiness, and two or three times as much physical violence. It may go without saying, but with 80%+ acceptance of cohabitation in Europe, it must be said—the children of unmarried, live-in parents also have many more behavioral problems than the children of single parents, who already have more problems than children with married parents. And while unmarried "mothers' boyfriends perform comparatively little child care, they are responsible for more child abuse than any other non-parental caregivers."

Having briefly reviewed the anti-marriage revolution, I turn now to the gay marriage revolution — a stunning recent development. Since 2001, same-gender marriage has been legalized in the Netherlands, Belgium, Spain, South Africa, Canada, and one American state — Massachusetts. As recently as fifteen years earlier, no country in the world had ever been willing to take same-gender marriage so seriously. The current debate about same-gender marriage is potentially a good thing, because the debate will force us to clarify what marriage is, and should be, at a time when the anti-marriage revolution has already caused many people to lose their bearings about marriage.

Are the advocates for same-gender marriage arguing from a different legal theory than the individual rights ideas that fueled the anti-marriage revolution? No. The radical personal autonomy theory on which the Massachusetts same-gender marriage case is based is actually the logical extension of the same individualistic concept that created no-fault divorce. When the law upholds an individual's right to END a marriage, regardless of social consequences (as happened with no-fault divorce), that same legal principle can be used to justify the individual's right to START a marriage, regardless of social consequences (as happens with same-gender marriage).

This utter disregard for social consequences by same-gender marriage advocates cries out for answers about the very meaning of marriage. As a matter of conscious public policy choice, are we really ready to abandon all concern with the effect of our marriage laws on children and community? And if individual rights still hold the trump cards in legal analysis, couldn't we structure marriage so that it serves the child's right to optimal personal development rather than serving only adult rights?

The judges in the historic Massachusetts case based their reasoning on "principles of respect for individual autonomy." The legal concept of personal autonomy does not claim to have high social value. Indeed, autonomy arguments often thrive on flaunting the established society. For example, in the most forceful statement yet by a U.S. Supreme Court justice in support of gay rights, Justice Harry Blackmun wrote in 1986 that he would protect homosexual behavior "not because (it contributes) to the general public welfare, but because (it forms) so central a part of an individual's life," including one's "right to differ as to things that touch the heart of the existing order."

All other judicial opinions supporting same-gender marriage are also based on notions of personal liberty and privacy, not on the social value of the marriage. In fact, no judge who has seriously thought through the historic concept that marriage is a social institution has been able to conclude that same-gender marriage should be legal. The gay marriage debate thus asks a stark question: should marriage simply endorse a private adult choice, or is it an institution with the public purpose of advancing the interests of children and society as well the couple's interests?

A parliamentary commission in France last year published a compelling analysis that persuaded the French National Assembly to reject same-gender marriage. The heart of their argument was that marriage is a social institution. For one thing, they said, marriage articulates the alliance between men and women from generation to generation. This has great social value, channeling sexual attractions to avoid damage and ensuring commitments to both partners and offspring.

The report also speaks with unassailable logic about children, insisting that a state cannot consider marriage without also considering "filiation" — child-parent ties. Because marriage is inevitably built around children, all countries that have adopted same-sex marriage have eventually authorized adoption and surrogate gestation by same-sex couples.

In other words, if a country changes the way its marriage laws affect adults, that country has unavoidably changed the way its family laws affect children. With that premise in place, the French report says we can "no longer systematically place (the) aspirations of adults ahead" of children's needs and rights. Moreover, if we allow individual control of family forms to persist, "we exhaust all possibility of expression of society's stake in marriage." And these conclusions are not based on religion. The devotion of the French writers to secularism needs no documentation. (Indeed, as French President Chirac has said, in France secularism IS our religion.) Still, this report explicitly rests its case on a purely secular foundation.

Among other things, the French report saw three specific dimensions of a child's right to biological, married parents: identity, bonding, and security. Obviously not every child can enjoy such gifts, but the exceptions should be determined by children's interests, not adult preferences.

1. Identity: the United Nations Convention on the Rights of the Child states that "The child shall have the right as far as possible to know and be cared for by his or her (biological) parents." As part of ensuring a child's sense of identity, the French report states that no country knowingly entrusts children to homosexuals, because that violates the child's deeply felt aspiration to normality—a crucial need for children already at risk because they feel abandoned by their biological parents. To ignore this need is to discriminate against children who are denied biological parentage. Thus the report opposes adoption by gay and lesbian adults, because adoption should be about a child's right to a family, not about an adult's right to a child.

2. Bonding: As Daniel Cere wrote, "Conjugal marriage attempts to sustain enduring bonds between women and men in order to give a baby its mother and father, to bond them to one another and to the family." The French report therefore rejects the use of medically assisted conception for same-sex couples, because biological bonds are inherently more lasting. And because the report asserts that surrogate gestation can make unethical use of a woman's body, it also rejects "rent-a-womb" pregnancies in the absence of compelling circumstances.

3. Security: For sound psychological development, the report said, "A child needs (the) legal and emotional security" that is possible only when the child enjoys both legal and biological parental bonds. Unmarried heterosexual couples also cannot provide such security, even if they are a child's biological parents, because being unmarried leaves them inherently uncommitted to the child. And they are far more likely to separate than are married parents, exposing children to still further risks.

In sum, the French rejected same-gender marriage so that children "do not suffer as a result of situations imposed on them by adults. The interest of the child must outweigh the exercise of freedom by adults . . . whatever life choices are made by the parents." This view clearly takes marriage away from the private, adults-only world of gay and lesbian lifestyles and returns it to its original place as our primary social institution.

I will conclude by summarizing the four main social "goods" provided by traditional marriage. First is the needs and rights of children. I admire the courage and insight of the French report. It makes clear that marriage is about children's needs, not just about adult rights. And in the aggregate, giving priority to children's needs is the only way to ensure the aspiration of the Preamble to the U.S. Constitution: the "blessings of liberty" not only for "ourselves" but for "our posterity" — the future society. Of course, not all married parents provide ideal child nurturing, but the commitments built into long-term marriage do increase a child's chances for sound development. This factor alone may justify the priority we have traditionally given to permanent kinship units based on marriage. Fulfilling this "mission" of shaping children into competent adults and citizens is obviously helped by the whole village, but mostly it requires two married parents.

Second, family commitments based on the obligations of marriage and kinship teach both parents and children how to transcend self-interest and live the civic virtues that make a free society possible, such as responsibility, cooperation, and self-restraint. Family ties have an uncanny power to help people learn obedience to the unenforceable, those "habits of the heart" that make secure homes the foundation of our civilized order. That is why Elder Neal A. Maxwell said it is more important to keep pure the headwaters of humanity — the family — than simply to worry about downstream pollution. As Tocqueville wrote, "the American derives from his own home that love of order which he afterwards carries with him into public affairs."

Third, the family as a distinct legal entity is a critical element in maintaining a democratic society. Placed firmly between the individual and the massive structures of government and business, the married family is the "little platoon" that gives each individual a sense of purpose and meaning for life. The state may teach us the duties and skills of citizenship, but it cannot and should not specify our most personal life purposes. We have given parents the power to decide which personal values children should learn.

We would never allow state control over childrearing, because that would destroy the diversity and range of free choice that democracy is designed to protect. Reviewing the history of totalitarian states like Nazi Germany, the Soviet Union, and Communist China, Allan Carlson found that all totalitarian regimes try to eliminate marriage as a significant structure — so that the state may have direct control over each person.

As David H. Lawrence put it, "The marriage bond . . . is the fundamental connecting link in . . . society. Break it, and you will have to go back to the overwhelming dominance of the State . . . . (Marriage) has given man the best of his freedom, given him his little kingdom of his own within the big kingdom of the State, given him the foothold of independence on which to stand . . . Man and wife, a king and queen with (a few) subjects, and a few square yards of territory of their own: this, really, is marriage. It is a true freedom."

Fourth, long-term marriage enables the most stable expectations in personal relationships. My willingness to marry, like my willingness to have a child, tells my family and society that I am invested in these relationships for the long haul. Then my wife and children may also invest themselves without wondering if their sacrifice is worth their effort.

These unenforceable, even unspecificable, expectations rooted in marriage and kinship are the best source of personal care — not only for the oldest and weakest among us, but for all of us. One live-in lover reportedly said to her unmarried companion, "If you ever really need me, we're going to be in trouble." In contrast, John Donne wrote, "No man is an island entire of itself." We do need each other, now and through every coming generation.

The Fifth Commandment states, "Honor thy father and thy mother: that thy days may be long upon the land . . ." For the sake of our future society, might we also say to parents, honor thy sons and thy daughters, that their days — and ours — may be both long and sweet upon the land.